Florida's flawed Death System
THIRTY-FIVE YEARS AGO , JOHN ARTHUR SPENKELINK, A DRIFTER FROM California who had been convicted of murdering a fellow transient at a flophouse in Tallahassee, was strapped into the electric chair at the Florida State Prison in Raiford.
Three years before, the U.S. Supreme Court had reinstituted the death penalty by overturning its 1972 decision that held capital punishment to be unconstitutional. Mr. Spenkelink was the first person
in the United States to be put to death against his will as a result of the Court’s resurrection of capital punishment.
Gary Gilmore had in 1977 faced a firing squad in Utah, but Mr. Gilmore — who famously said “Let’s do it!” as he was marched to his death — did not contest his fate. Mr. Gilmore disdained appeals, passionately embraced his execution and became a cultural curiosity as a result. John Spenkelink, who claimed he killed in self-defense, portrayed himself as a victim of an unfair and capricious legal system. In correspondence from Death Row, he routinely included an axiom that many mistakenly believe to be his last words.
The merits of Mr. Spenkelink’s execution were debated at the time, but no one could have known that his case foreshadowed the problems and controversies that still engulf Florida’s administration of the death penalty.
As the hour of Mr. Spenkelink’s execution drew nigh, a disturbing fact surfaced; no one at the prison — which had not conducted an execution in 15 years — knew how to operate the electric chair. The creaky, three-legged monstrosity, which had been built — in a cruel twist of irony — by inmates in 1923, was fashioned from oak and bore the grimly cheerful nickname “Old Sparky.” Flummoxed prison officials sought the services of a consultant from Westinghouse, who was quietly dispatched to Raiford, where he conducted a tutorial on the fine art of death by electrocution.
When the execution finally came to be on May 25, 1979, witnesses were allowed to view only the final moments. By the time the blinds were pulled back in the death chamber, the 30-year-old Mr. Spenkelink already was hooded, gagged and secured in Old Sparky. This lack of transparency gave rise to wild speculation that the condemned man fought furiously with guards as he was wrestled into the chair. Rumors swirled that he had suffered a broken neck in the melee and already was dead when the electricity was administered. To quell this tempest, Mr. Spenkelink’s body was exhumed and an autopsy performed. The postmortem examination revealed that he had indeed succumbed to electric shock, but the state of Florida was roundly criticized for the clumsy manner in which it had dispatched Mr. Spenkelink. In the years since, the state’s reputation as a capable and judicious overseer of capital punishment protocols has eroded further.
The debate over the death penalty in Florida today centers not so much on the morality and wisdom of the practice itself, although that discussion persists. Instead, the focus most often falls on the incompetence, indifference, demagoguery, penuriousness and ineptitude that the state displays in almost every facet of putting someone to death.
Critics of the state’s death procedures are vociferous, legion and disparate — ranging from the American Bar Association to Amnesty International to the Florida Supreme Court to an array of legal scholars and human rights advocates. The only people who seem satisfied with the status quo are the politicians (Democrats and Republicans) in Tallahassee who created the mess and appear to be unwavering in their determination to make things worse. Thoughtful discourse on capital punishment in the legislature is sparse, and many of the state’s governors have been no better. Tasteless one-liners and crude attempts at gallows humor predominate.
Typical of this smirking, flippant attitude toward the ultimate punishment was Tampa Mayor Bob Martinez, who promised in 1986 that “Florida’s electric bill will go up” if the voters made him governor, which is precisely what they did.
“To achieve real, lasting reform on how we administer the death penalty in Florida, there must be a serious, thoughtful debate,” says Duane Dobbert, professor of justice studies at Florida Gulf Coast University.
Dr. Dobbert, who has 45 years of experience in the public-safety and criminal-justice systems, adds, “We have not had that debate on the state level, and there is no indication that we will have it anytime soon. It is something that is swept under the carpet.”
Thirty-two states employ the death penalty, but few make a hash of it as frequently and in so many ways as Florida. T HE STATE ELECTROCUTED ITS first inmate in 1924 — one year after the construction of Old Sparky. Previously, executions had been the domain of individual counties, most of which favored hanging — usually carried out on the grounds of a courthouse — as the means of death, the Florida Department of Corrections informs us.
In 1990, Old Sparky was 67 years old and richly deserving of the scrapheap. This became horrifyingly evident during the execution of Jesse Tafero. Six-inch flames shot from Mr. Tafero’s head, and three separate jolts of electricity were required to kill him. This gruesome tableau was shrugged off by prison officials as “inadvertent human error,” and Old Sparky was kept in play.
Seven years later, Pedro Medina took his turn in the broken-down death throne. As warden of the Florida State Prison in 1997, Ron McAndrew presided over the execution. Earlier this year, Mr. McAndrew gave a chilling, first-person account of Mr. Medina’s demise to Esquire.com.
“As I told the executioner to turn on the electricity, there was a pop,” Mr. McAndrew recalled. “Immediately following the pop, there was a plume of smoke that came from beneath the helmet, sort of out in front of my face, with a bad odor. Then there was a long flame. It was a flame that dipped down out of the helmet and in front of my face. It almost hit me.”
The Medina spectacle was so grotesque that state officials were besieged by expressions of indignation and disgust. How could this happen again? What’s going on here? Does Florida condone burning people alive?
“People who wish to commit murder, they better not do it in the State of Florida, because we may have a problem with our electric chair,” was the glib response given by Bob Butterworth, the state’s attorney general at that time.
“You know, putting someone to death is not the most friendly thing,” he said.
Behind the scenes, though, Gov. Chiles realized that changes were needed.
“Two or three days (after the Medina execution) I got a call from Gov. Chiles,” Mr. McAndrew said in his Esquire account. “He said, ‘Listen, it’s too bad we had that mess. That really hurt. … We gotta get the needle out.’ ”
Mr. McAndrew said Gov. Chiles dispatched him to Texas to study that state’s method of lethal injection.
The Medina incident attracted international attention and howls of predictable outrage from opponents of the death penalty and assorted other “dogooders.” But Florida — being Florida, after all — viewed the imbroglio from its own idiosyncratic perspective.
Perhaps only in the Sunshine State could a publicly financed immolation be seen as a boon to the tourist industry. Orlando attorney John (“For the People”) Morgan — the omnipresent, moon-faced television pitchman for his law firm, Morgan & Morgan — certainly saw it as such. Just months after the Medina debacle, Mr. Morgan purchased a mock electric chair that resembled Old Sparky at an amusement park trade show and placed it at the WonderWorks attraction in Orlando.
Mr. Morgan said he personally opposed the death penalty, and he said he understood why some people found the notion of a faux Old Sparky to be creepy. Still, he insisted it was all in good fun.
A WonderWorks press release said the chair “shocks guests as they strap in for a jolting experience.” To more closely replicate Mr. Medina’s fiery denouement, the chair emitted smoke.
By 1999, Old Sparky — after 75 years on the job and 266 executions — was gone. Its replacement was christened by a 350-pound murderer named Allen Lee Davis, who was known to the denizens of Death Row as “Tiny.” Tiny’s morbid obesity hastened Old Sparky’s retirement. It was feared that the ageold death device might collapse under his formidable weight, sending live wires dancing hither and yon across the floor of the death chamber. Prison officials proudly announced that the new electric chair was especially modified to accommodate the condemned man’s enormous girth. If Tiny was worried about any possible glitches in his execution, it was not reflected in his appetite. He remained a steadfast trencherman to the very end, consuming an epic last meal of a lobster tail, eight ounces of fried shrimp, six ounces of fried clams, fried potatoes and a quart of root beer. (The state no longer countenances Michelin-style final meals. The cost of these repasts is capped at a fairly generous $40, and all provisions must be purchased locally, the Department of Corrections reports.)
To the relief of the execution team, the new, reinforced chair held up just fine. Still, that did not prevent the affair from turning into a bloody mess. For Florida Supreme Court Justice Leander Shaw, it was the final straw. He said that Mr. Davis had been “brutally tortured to death by the citizens of Florida.”
To appease critics, the Florida Legislature in 2000 gave death row inmates a dismal choice: lethal injection or electrocution? Unsurprisingly, no one has opted for the latter, thus making “Tiny Davis” the answer to the trivia question, “Who was the last person to die in Florida’s electric chair?”
The move to lethal injection did not solve Florida’s problems. In 2006, the execution of Angel Nieves Diaz (aka the “Daddy of Death”) went hopelessly awry when needles used to administer the deadly chemicals were not inserted properly. As a result, 34 minutes were required to kill Mr. Diaz — more than twice the time it should have taken.
“This is further proof of the broken death-penalty system in Florida,” Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty, said in the wake of the Diaz fiasco. “Florida has no business in executions.” A S OF MID-SEPTEMBER, Florida and Texas had executed seven inmates, trailing only Missouri — with eight — for the most executions this year. Since Mr. Spenkelink was killed in 1979, Florida has executed 88 inmates, which, again as of mid-September, falls behind Virginia (110), Oklahoma (111) and Texas (515!). Last year, Florida’s execution total was seven, which was second to Texas’s 16.
“Florida seems to be going in the opposite direction of other states,” says Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. “Instead of figuring out what’s gone wrong, Florida only seems interested in (speeding the pace of executions).”
“Yeah, it’s all politics,” says Hilliard Moldof, a Fort Lauderdale defense attorney with extensive experience in capital cases. “Whether anyone wants to admit it, the fact is we are still a redneck state.”
“The problem is that no one wants to touch (the reform issue),” says Dr. Dobbert, the FGCU professor. “Certainly, no one in the legislature wants to touch it. They have wealthy constituents who say, ‘Kill ‘em. We don’t want (prisoners) to escape and kill my kids.’ Those are the people (legislators) listen to.”
The shortcomings of Florida’s death procedures are so egregious that an article in The Daily Beast a few months back contained this remarkable sentence, “Florida has joined North Korea and Iran as a major concern for Amnesty International’s death penalty campaigners.”
There have been piddling attempts to address the inadequacies of the state’s capital system. The legislature in 1997 created the Florida Commission on Capital Cases. The ostensible purpose of the commission was to “review the administration of justice” in death cases. It also served as a repository of information about the death penalty. This proved to be more than lawmakers could stomach. Legislators abolished the commission in 2011 and repealed the law that created it. Gov. Rick Scott signed that legislation, and it was triumphantly announced that the state saved $400,000 by getting rid of the commission.
The touchstone for reforming the death penalty in Florida is a withering 2006 study produced by the American Bar Association. The report was written by Florida-based experts. The eight-person ABA team included an elected state attorney, a former public defender and a former Florida Supreme Court chief justice. The study took no stance on the death penalty per se; its lone intent was to make recommendations on how the existing system could be improved.
“The team has concluded … that the state of Florida fails to comply or is only in partial compliance with many of these recommendations and that many of the shortcomings are substantial,” the study pointed out. “More specifically, the team is convinced that there is a need to improve the fairness and accuracy in the death penalty system.”
Among the myriad problems outlined in the study were discrepancies in sentencing that were based on race and geography, the lack of adequate defense counsel in many cases, a lack of transparency in the clemency process, the imposition of the death penalty on people with “severe mental disability” and persistent and widespread confusion among jurors in capital cases.
The ABA team emphasized that Florida is the only state in which a jury can recommend a death sentence based on a mere majority (7-5) vote. All other capital states, except Alabama, require a unanimous vote. Alabama, however, insists on a “super majority” vote of at least 10-2 when imposing a death mandate.
In 2005, the Florida Supreme Court addressed this issue and urged policymakers to revisit unanimity in capital cases. Then-Gov. Jeb Bush said the question was “definitely worth considering” and counseled the legislature to consider the court’s suggestion.
Per usual, Florida’s lawgivers have refused to confront the unanimity matter or any of the other recommendations set forth in the ABA study. (The Florida Supreme Court, though, did take it upon itself to modify jury instructions in death cases, as recommended in the ABA study.)
In place of substantive reform, lawmakers last year cranked out a controversial piece of legislation known as the Timely Justice Act, which aims to speed a condemned prisoner’s journey to the death chamber. The act requires the clerk of the Florida Supreme Court to alert the governor when an inmate on death row has exhausted his initial state and federal appeals. The legislation compels the governor to sign a death warrant for such an inmate within 30 days. The governor is further required to order the warden at the Florida State Prison to schedule an execution within 180 days.
The average stay on Florida’s Death Row (about 13 years) is nearly two years shorter than national average (roughly 15 years). Proponents of the TJA presuppose that quicker executions will enhance the death penalty’s “deterrence factor” and also save the state money.
Dr. Dobbert says anyone arguing deterrence is muddling facts.
“To say (the death penalty) is a deterrent is simply false,” he says. “There are enough studies out there that show it is not a deterrent. This is because most murders are crimes of passion, impulsive.”
As to costs, Forbes magazine examined the economics of the death penalty and determined that trials of capital cases “are more expensive and take much more time to resolve” than those in which a sentence of life in prison without parole is sought. Moreover, the magazine noted that it “costs more to house death penalty prisoners.”
This assertion was supported by a report released in February by The Kansas Judicial Council, which studied the costs of housing a death-row inmate and found that they were about double the amount spent on a prisoner in the general population. The ACLU contends that sentencing someone to death is three times more expensive than sentencing them to life without parole.
The TJA cleared an initial legal hurdle in June of this year when the Florida Supreme Court unanimously upheld the measure.
Justice R. Fred Lewis’ opinion said, in part, that the TJA “does not directly restrict or regulate the procedural mechanisms of the judicial process because it does not alter the timelines of capital postconviction proceedings.”
Later, after Gov. Rick Scott had signed the legislation, Rep. Gaetz took to Twitter, where he wrote, “Several on Death Row need to start picking out their last meals.”
Hyperbole aside, it is unclear how the TJA ultimately will affect the 388 men and five women who currently await execution in Florida.
Mark Elliott of the Tampa-based Floridians for Alternatives to the Death Penalty says the legislation may be more symbolic than substantive. He points out that the clemency process still applies, which means that the final decision remains “in the hands of the governor.”
“(O)ne would wonder why the governor signed the bill in the first place,” Stephen Harper, a professor at Florida International University and an expert on the state’s death laws, told the News Service of Florida. “It would seem to be nothing more than (Gov. Scott) kowtowing to his constituency without any substance.”
Florida leads the nation in the number of condemned inmates who have been exonerated and freed from death row, which troubles those who oppose the TJA. Since 1973, there have been 146 exonerations nationwide, and Florida has accounted for 24 of them, the Death Penalty Information Center says.
Foes of the TJA fear it will dramatically increase the odds that innocent inmates will be executed.
Herman Lindsey was the 23rd of Florida’s 24 exonerations. Mr. Lindsey was convicted and sentenced to death in 2007 for the murder of an employee at a pawn shop in Broward County. The Florida Supreme Court unanimously overturned the conviction in 2009, and Mr. Lindsey was set free.
In tossing out the conviction, the justices said that the prosecution could not place Mr. Lindsey at the scene of the crime and that all of the state’s evidence was circumstantial.
“The evidence here is equally consistent with a reasonable hypothesis of innocence,” the opinion stated.
Speaking by telephone from Pompano Beach, where he now lives, the 41-year-old Mr. Lindsey — who has a substantial history of arrests and convictions for serious criminal offenses — says his initial reaction to the guilty verdict in the murder case was disbelief.
“I was wondering how in the world this happened,” he says. “I wasn’t even there.”
“There is no doubt in my mind that the Timely Justice Act will lead to innocent people being executed,” he continues. “I learned firsthand that the justice system does not have a secure error margin.” Although he was exonerated, Mr. Lindsey says the murder conviction remains on his record, making it nearly impossible to secure employment.
“I can explain all day that I was exonerated, but that murder conviction still shows,” he says. “I know what people are thinking. They are wondering if I really did it. They are wondering if I just got lucky on appeal. I understand their thought process. So, getting a job, or even a place to live, is rough. I cut grass, pick up cans, do whatever I need to do to survive.”
Mr. Lindsey has sought financial compensation from the state for his stay on Death Row, but he says his claims have been denied because of his lengthy rap sheet.
The exoneration did not convince everyone of Mr. Lindsey’s innocence. In a statement given to the now-defunct Florida Commission on Capital Cases, David Frankel, the prosecuting attorney in Mr. Lindsey’s case, said, “… I doubt anyone connected with this case would argue loudly for Mr. Lindsey’s actual innocence and deny that he got away with murder.”
Seth Penalver also was exonerated while awaiting execution. Mr. Penalver was charged with participating in a home invasion in Miramar in 1994 that resulted in three murders. His first trial ended in 1998 with jurors deadlocked 10-2 in favor of conviction. Mr. Penalver was tried again in 1999, and he was convicted this time and shuttled to death row. The Florida Supreme Court reversed that conviction. Mr. Penalver was tried a third time in 2012 and found not guilty of all charges.
Hilliard Moldof, Mr. Penalver’s lawyer, believes his client might have been executed had the TJA been in force. Mr. Moldof, who spent 18 years working on Mr. Penalver’s case, says that “something like (the TJA) can really put (possible exonerations) in jeopardy.”
Mr. Moldof says Mr. Penalver, like Mr. Lindsey, finds it difficult to land a job because of the murder conviction. But, he says, Mr. Penalver has stayed out of trouble. “He’s blended back into society.”
The attorney stoutly maintains that Mr. Penalver was wrongly convicted and did not commit the murders that were laid to him.
As in Mr. Lindsey’s case, some do not believe that exoneration automatically confers innocence. Following Mr. Penalver’s acquittal, a sister of one of the victims told a reporter, “This guy is a murderer, and they let him out.”
In the case of Frank Lee Smith, though, there is no disputing that an innocent man was condemned to death. In 1986, Mr. Smith was convicted of raping and murdering an 8-year-old girl in Fort Lauderdale. Gov. Bob Martinez signed a death warrant for Mr. Smith in 1989, but a stay kept him out of the electric chair. Mr. Smith died in prison in 2000 from pancreatic cancer. He had languished on Death Row for 14 years.
Eleven months after his death, DNA testing results conclusively proved Mr. Smith’s innocence and identified the true murderer as Eddie Lee Mosey, a convicted serial killer and rapist.
Although the tide runs swiftly against those advocating reform or outright abolition of the death penalty, Mr. Elliott of Floridians for Alternatives to the Death Penalty professes to be “hopeful.” One encouraging sign, he says, is that “more conservatives and libertarians” are having second thoughts about capital punishment.
Because the legislature is unwilling to discuss or consider even rudimentary reforms and because there is no public clamor demanding that it do so, The New York Times — echoing the views of many — sees little cause for optimism.
In an editorial published last year, The Times declared, “The flaws in Florida’s (death) system…cannot be fixed.” ¦
>> Means of execution: In January 2000, the Florida Legislature passed legislation that allows lethal injection as an alternative method of execution in Florida. Florida administers executions by lethal injection or electric chair at the execution chamber located at Florida State Prison. The three-legged electric chair was constructed from oak by Department of Corrections personnel in 1998 and was installed at Florida State Prison in Raiford in 1999. The previous chair was made by inmates from oak in 1923 after the Florida Legislature designated electrocution as the official mode of execution. (Prior to that, executions were carried out by counties, usually by hanging.)
>> First executed inmate: Frank Johnson was the first inmate executed in Florida’s electric chair on Oct. 7, 1924. In 1929 and from May 1964 to May 1979 there were no executions in Florida.
>> Witnesses: The department relies on the Florida Press Association and the Florida Association of Broadcasters to select 10 of the 12 pool reporters who may witness an execution (two places are always reserved for the Associated Press and United Press International-Radio).
>> Death Watch cells: A Death Row cell is 6-by-9-by-9.5-feet high. Florida State Prison also has Death Watch cells to incarcerate inmates awaiting execution after the Governor signs a death warrant for them. A Death Watch cell is 12-by-7-by-8.5-feet high. Men on Death Row are housed at Florida State Prison in Raiford and Union Correctional Institution in Raiford. The women on Death Row are housed at Lowell Annex in Lowell.
>> Meals: Death Row inmates are served meals three times a day: at 5 a.m., from 10:30 a.m. to 11 a.m. and from 4 p.m. to 4:30 p.m. Food is prepared by prison staff and transported in insulated carts to the cells. Inmates are given sporks with their meals and they eat from the provided tray. Prior to execution, an inmate may request a last meal. To avoid extravagance, the food to prepare the last meal must cost no more than $40 and must be purchased locally.
>>Visitors: All inmate visitors must be approved before visitation is allowed. Questions regarding an inmate’s visiting day(s), visiting hours, and special visits should be directed to the Classification Officer responsible for the inmate at the inmate’s assigned facility. Questions may be sent by letter, email or by telephone. Members of the news media may request Death Row inmate interviews through the Department of Corrections Communications Office at (850) 488-0420. The inmate must agree to the interview and the interview will be non-contact.
>> Showers: The inmates may shower every other day.
>> Security: Death Row inmates are counted at least once an hour. They are escorted in handcuffs and wear them everywhere except in their cells, the exercise yard and the shower. They are in their cells at all times except for medical reasons, exercise, social or legal visits or media interviews. When a death warrant is signed the inmate is put under Death Watch status and is allowed a legal and social phone call.
>> Mail, Magazines & Entertainment: Inmates may receive mail every day except holidays and weekends. They may have snacks, radios and 13-inch televisions in their cells. They do not have cable television or air-conditioning and they are not allowed to be with each other in a common room. They can watch church services on closed-circuit television. While on Death Watch, inmates may have radios and televisions positioned outside their cell bars.
— Source: Florida Department of Corrections